1. Congress being authorized to establish an uniform rule
of naturalization, and uniform laws on the subject of bankruptcies
throughout the United States, it may well be questioned
how far the states can possess any concurrent authority,
on these subjects.

If, however, a doubt should arise respecting the former,
it might be presumed, that the rights intended to be conferred
by this uniform rule of naturalization, should be, in
general, confined to such as might be derived from the
federal government, without infringing those rights which
peculiarly appertain to the states. Thus a person naturalized
pursuant to the laws of the United States, would undoubtedly
acquire every right that any other citizen possesses,
as a citizen of the United States, except such as the
constitution expressly denies, or defers the enjoyment of;
and such as the constitution or laws of the individual states
require on the part of those who are candidates for office
under the authority of the states. Five years residence, for
example, is required by the laws of Virginia, before any
naturalized foreigner is capable of being elected to any office
under the state. It is presumable that his being naturalized
under the laws of the United States would not
supercede the necessity of this qualification.

. . . . .

4. Congress have power to establish an uniform rule of
naturalization, and uniform laws on the subject of bankruptcies,
throughout the United States.

As to the former of these powers; by the first articles of
confederation and perpetual union between the states, it
was agreed, that the free inhabitants of each state, paupers,
vagabonds, and fugitives from justice excepted,
should be entitled to all privileges and immunities of free
citizens in the several states; and the people of each state
shall, in every other, enjoy all the privileges of trade and
commerce, &c. The dissimilarity of the rules of naturalization
in the several states, had long been remarked as a
fault in the system, and, as combined with this article in
the confederation, laid a foundation for intricate and delicate
questions. It seems to be a construction scarcely
avoidable, that those who come under the denomination
of free inhabitants of a state, (although not citizens of such
state), were entitled in every other state to all the privileges
of free citizens of the latter, that is, to greater privileges
than they may be entitled to in their own state: our free
negroes, for example, though not entitled to the right of
suffrage in Virginia, might, by removing into another
state, acquire that right there; and persons of the same
description, removing from any other state, into this,
might be supposed to acquire the same right here, in virtue
of that article, though native-born negroes are undoubtedly
incapable of it under our constitution: so that
every state was laid under the necessity, not only to confer
the rights of citizenship in other states, upon any whom it
might admit to such rights within itself, but upon any
whom it might allow to become inhabitants within its jurisdiction.
But were an exposition of the term "inhabitants"
to be admitted, which would confine the stipulated privileges
to citizens alone, the difficulty would not be removed.
The very improper power would still have been
retained by each state, of naturalizing in every other state.
In one state, residence for a short time conferred all the
rights of citizenship; in another, qualifications of greater
importance were required: an alien, therefore, legally incapacitated
for certain rights in the latter, might, by previous
residence only in the former, elude his incapacity;
and thus the law of one state, be preposterously rendered
paramount to the law of another, within the jurisdiction of
such other. By the laws of several states, certain descriptions
of aliens, who had rendered themselves obnoxious,
and other persons whose conduct had rendered them liable
to the highest penalties of the law, were laid under
interdicts inconsistent, not only with the rights of citizenship,
but with the privileges of residence, beyond the short
period allowed by the treaty of peace with Great Britain.
We owe it to mere casualty, that very serious embarrassments
on this subject have not occurred. The constitution,
and the several acts of naturalization passed by congress,
have therefore wisely provided against them by this article,
and by an explicit declaration contained in the law, that no
person heretofore proscribed by any state, shall be admitted
a citizen, except by an act of the legislature of the state
in which such person was proscribed.

The federal court, consisting of judges Wilson and Blair,
of the supreme court, and judge Peters, district judge in
Pennsylvania, at a circuit court held for the district of
Pennsylvania, in April, 1792; decided, "that the states, individually,
still enjoy a concurrent jurisdiction upon the
subject of naturalization: but that their individual authority
cannot be exercised so as to contravene the rule established
by the authority of the union: the true reason for
investing congress with the power of naturalization (said
the court,) was to guard against too narrow, instead of too
liberal a mode of conferring the right of citizenship. Thus
the individual states cannot exclude those citizens, who
have been adopted by the United States; but they can
adopt citizens upon easier terms, than those which congress
may deem it expedient to impose."

But this decision seems to have been afterwards doubted
by judge Iredel, 2 Dallas, 373. And the act of 5 cong. c.
71. declares, that "no alien shall be admitted to become a
citizen of the United States, or of any state, unless in the
manner prescribed by that act." And by a subsequent act,
passed 7 cong. chapter 28, it is also declared, that any
alien, being a free white person, may become a citizen of
the United States, or any of them, on the conditions
therein mentioned, "and not otherwise." These legislative
expositions of the constitution do not accord with the judicial
opinion above-mentioned. A very respectable political
writer makes the following pertinent remarks upon this
subject. "Prior to the adoption of the constitution, the
people inhabiting the different states might be divided
into two classes: natural born citizens, or those born within
the state, and aliens, or such as were born out of it. The
first, by their birth-right, became entitled to all the privileges
of citizens; the second, were entitled to none, but
such as were held out and given by the laws of the respective
states prior to their emigration. In the states of Kentucky
and Virginia, the privileges of alien friends depended
upon the constitution of each state, the acts of
their respective legislatures, and the common law; by these
they were considered, according to the time of their residence,
and their having complied with certain requisitions
pointed out by these laws, either as denizens, or naturalized
citizens. As denizens, they were placed in a kind of
middle state between aliens and natural born citizens; by
naturalization, they were put exactly in the same condition
that they would have been, if they had been born within
the state, except so far as was specially excepted by the
laws of each state. The common law has affixed such distinct
and appropriate ideas to the terms denization, and
naturalization, that they can not be confounded together,
or mistaken for each other in any legal transaction whatever.
They are so absolutely distinct in their natures, that
in England the rights they convey, can not both be given
by the same power; the king can make denizens, by his
grant, or letters patent, but nothing but an act of parliament
can make a naturalized subject. This was the legal
state of this subject in Virginia, when the federal constitution
was adopted; it declares that congress shall have
power to establish an uniform rule of naturalization;
throughout the United States; but it also further declares,
that the powers not delegated by the constitution to the U.
States, nor prohibited by it to the states, are reserved to
the states, respectively or to the people. The power of naturalization,
and not that of denization, being delegated to
congress, and the power of denization not being prohibited
to the states by the constitution, that power ought not
to be considered as given to congress, but, on the contrary,
as being reserved to the states. And as the right of denization
did not make a citizen of an alien, but only placed
him in a middle state, between the two, giving him local
privileges only, which he was so far from being entitled to
carry with him into another state, that he lost them by removing
from the state giving them, the inconveniences
which might result from the indirect communication of
the rights of naturalized citizens, by different modes of
naturalization prevailing in the several states, could not be
apprehended. It might therefore have been extremely impolitic
in the states to have surrendered the right of denization,
as well as that of naturalization to the federal government,
inasmuch as it might have operated to
discourage migration to those states, which have lands to
dispose of, and settle; since, it might be a disagreeable alternative
to the states, either to permit aliens to hold lands
within their territory, or to exclude all who have not
yet completed their probationary residence within the
U. States, so as to become naturalized citizens, from purchasing,
or holding lands, until they should have acquired
all other rights appertaining to that character."

Here, another question presents itself: if the states, individually,
possess the right of making denizens of aliens,
can a person so made a denizen of a particular state, hold
an office under the authority of such state? And I think it
unquestionable that each state hath an absolute, and uncontrolable
power over this subject, if disposed to exercise
it. For every state must be presumed to be the exclusive
judge of the qualifications of it's own officers and servants:
for this is a part of their sovereignty which they can not
be supposed to have intended ever to give up. And if there
be nothing in their constitutions, respectively, to the contrary,
the legislature may unquestionably, by a general law,
limit, or extend such qualifications, so far as they may
think proper. The law of Virginia declares, "that all persons
other than alien enemies, who shall migrate into this
state, and give satisfactory proof by oath or affirmation
that they intend to reside therein, and take the legal oath
of fidelity to the commonwealth shall be entitled to all the
rights, privileges and advantages of citizens, except that
they shall not be capable of election or appointment to any
office, legislative, executive or judiciary, until an actual
residence in the state for five years thereafter; nor until
they shall have evinced a permanent attachment to the
state, by intermarrying with a citizen thereof, or of some
one of the United States, or purchased lands of the value
of three hundred dollars therein." Now although the act
of congress may operate to repeal this act, so far as relates
to the rights of naturalization, or, a state of perfect citizenship,
under the constitution and laws of the union; yet, as
it respects the rights which the state hath power to grant,
such as holding lands, or an office under the sole, and
distinct authority of the state, I see no reason to doubt that
the law is as valid at this day, as it was before the adoption
of the constitution of the United States.

The periods of residence, required by the several acts of
congress before an alien can be admitted a citizen, have
been various. The act of 1 congress, 2 session, c. 3, required
two years only: this period was increased to five
years, by the act of 3 congress, c. 85, which was still further
extended to fourteen years, by the act of 5 congress, c. 71,
but the act of 7 cong., c. 28. has reduced it to five years,
again. Any alien who shall have borne any hereditary title;
or been of any order of nobility, in any other state, must
renounce the same, on oath, at the time of his admission
to take the oath of a citizen. A wise provision, the benefit
of which it is to be hoped, may reach to the latest posterity.

. . . . .

"It is a principle of universal law, that the natural born
subject of one prince cannot by any act of his own, no, not
by swearing allegiance to another, put off, or discharge
his natural allegiance to the former." Blacks. Com. Vol. I.
p. 369.

The positive, and unqualified manner in which the
learned commentator advances this to be a principle of
universal law, would induce a supposition, that it is a point
in which all the writers on the law of nature and nations
are perfectly agreed. As my researches have led me to
adopt a very different, or, rather, opposite conclusion, it
will be the business of this note to examine the subject.

If it be contended that this is a principle of the divine
law, I should wish to be informed in which of the books of
the old, or new testament it is to be found. The family of
the patriarch Jacob voluntarily became subjects to the
Egyptian monarch. . . . And four hundred years afterwards,
Moses, their prophet, and deliverer, voluntarily
abandoned Egypt, his native country, and dwelt among
the Midianites; and then he, with the whole of the descendants
of Jacob voluntarily departed out of Egypt, under
the immediate protection and guidance of Jehovah, himself.
. . . David also, the man after God's own heart, abandoned
his natural liege lord Saul, and went and dwelt with
Achish, king of Gath; and even marched in his army
against his native country, and liege lord, until the jealousy
of the lords of the Philistines obliged him to turn back. I
can not therefore believe that the divine law contains in it
any such principle.

Neither can I well conceive how this can be considered
as a principle of the law of nature; for according to that
law, all men are equal. One man therefore can not owe
allegiance to another, in virtue of that law; since there is
neither prince nor subject among men according to the
principles of it.

Nor yet does this appear to be a principle of the law of
nations, though perhaps it may have been the practice of
particular nations to prohibit their subjects from migrating
to any other: but in this case the prohibition arises from
the particular law of the state, and not from the general
law and practice of nations towards each other. The law of
Solon, which prohibited the Athenians from admitting any
person into their commonwealth, except such as were condemned
to perpetual banishment from their own country,
or else such as removed their whole families to Athens for
the convenience of trade, and employment of the arts they
professed, was not made so much to keep out foreigners,
as to invite them to settle at Athens, by giving them assurance
of incorporating them in the body of the commonwealth.
. . . For he made no doubt, says Plutarch, but
both these sorts of people would make very good subjects,
the one because they voluntarily quitted, and the other,
because they were forced out of their own country. Plato
says that, at Athens it was lawful for every private man,
after he had examined the laws and customs of the republic,
if he did not approve of them, to quit the city, and
retire where he pleased with his effects. By the constitution
of the Roman commonwealth, no citizen could forced
to leave the commonwealth, or if he pleased, not to leave
it, when he was made a member of another which he preferred
to it. And therefore Cicero says, that a little before
his remembrance, several citizens of Rome, men of credit
and fortunes, voluntarily left that, and settled themselves
in other commonwealths. And the way, says he, lies open
from every state to ours, and from ours to every other.
This right he extols in the most emphatic manner. "What
noble rights! which by the blessing of heaven have been
enjoyed by us and our ancestors, ever since the Roman
state begun, that none of us should be forced to leave our
country, or stay in it against our wills. This is the immovable
foundation of our liberty, that every man is master of
his right, and may keep it or resign it, as he pleases."
These instances, which are cited by Puffendorf, on this
subject, prove at least that this principle was neither to be
found in the Athenian or Roman institutions.

The practice among more modern nations is various:
among the Muscovites, emigration is not permitted. The
citizens of Neufchatel and Valengen, in Switzerland, may
quit the country, and carry off their effects in what manner
they please; a citizen of Bern may, if he pleases, remove
to Fribourg, and reciprocally, a citizen of Fribourg
may go and settle in Bern, and he has a right to take all
his effects with him. On the other hand it appears from
several historical facts, particularly in the history of Switzerland
and the neighbouring countries, that the law of
nations established there by custom, for some ages past,
does not permit a state to receive the subjects of another
state into the number of its citizens. This vicious custom,
says Vattel, had no other foundation than the slavery to
which the people were then reduced. A prince considered
his subjects in the rank of his property and riches; he calculated
their numbers, as he did his flocks; and to the disgrace
of human nature this strange abuse is not yet every
where destroyed.

Although Grotius denies that emigrants ought to leave
the state in troops or large companies, (an opinion which
is controverted by Puffendorf, and Burlamaqui), yet he allows
the case to be quite different when a single person
leaves his country; it is one thing, says he, to draw water
out of a river, and another to divert the course of a part
of that river. And Puffendorf expressly says, where there
are no laws about the matter (for the laws of different
countries differ in this respect), we must be determined by
customs arising from the nature of civil subjection. What
custom admits of, every subject is supposed at liberty to
use. But if this gives no light to the matter, and the compact
of subjection makes no mention of it; it must be presumed
that every man reserves to himself the liberty to
remove at discretion. For when a man enters into a commonwealth,
it cannot be supposed that he gives up all care
of himself and his fortunes, but rather that by so doing he
takes the best expedient to defend and secure both. But
because it often happens that the nature of the government
does not suit with every private man's circumstances,
or he thinks, at least, he can make his fortune with more
advantage elsewhere; and since it would be unreasonable
to reform and make alterations in the commonwealth at
the desire, and for the benefit of only a few private subjects,
the only method left is, to give them leave to remove
and provide for themselves where they think best. Burlamaqui
scruples not to adopt the opinion of Puffendorf,
altogether. So that we have the opinion of these four jurists
that every man hath a natural right to migrate from
one state to another, and that this right can only be restrained
under special circumstances, by the state to which
he belongs, without imposing upon him an unwarrantable
slavery.

Mr. Locke, in his essay on civil government seems to
have examined thoroughly the foundation of this pretended
right in governments to prohibit the emigration of
their subjects, or citizens. There are no examples, says he,
so frequent in history, both sacred and profane, as those
of men withdrawing themselves, and their obedience from
the jurisdiction they were born under, and the family or
community they were bred up in, and setting up new governments
in other places: this has been the practice of the
world, from its first beginning to this day; nor is it now
any more hindrance to the freedom of mankind, that they
are born under constituted and antient polities, that have
established laws, and set forms of government, than if they
were born in the woods, among the unconfined inhabitants
that run loose in them. For those who would persuade
us, that by being born under any government, we
are naturally subjects to it, and have no more any title, or
pretence, to the freedom of the state of nature, have no
other reason (bating that of paternal power) to produce
for it, but only because our fathers, or progenitors passed
away their natural liberty, and thereby bound up themselves
and their posterity to a perpetual subjection to the
government, which they themselves submitted to. 'Tis
true, that whatever engagements, or promises, any one has
made for himself, he is under the obligation of them, but
cannot by any compact whatsoever bind his children, or
posterity. For his son, when a man, being altogether as
free as the father, any act of the father can no more give
away the liberty of the son, than it can of any body else:
he may, indeed, annex such conditions to the land he enjoyed,
as a subject of any commonwealth, as may oblige his
son to be of the community, if he will enjoy those possessions,
which were his fathers; because that estate being his
father's property he may dispose, or settle it as he pleases.
And this has generally given the occasion to mistake in this
matter; because commonwealths not permitting any part
of their dominions to be dismembered, nor to be enjoyed
by any but those of their community, the son cannot ordinarily
enjoy the possession of his father, but under the same
terms his father did, by becoming a member of the society;
whereby he puts himself presently under the government
he finds established, as much as any other subject of that
commonwealth. And thus the consent of freemen, born
under government, which, only, makes them members of
it, being given separately in their turn, as each comes of
age, and not in a multitude together; people taking no notice
of it, and thinking it not done at all, or not necessary,
conclude they are naturally subjects, as they are men.

And this mistake, it is evident Sir Matthew Hale has
fallen into, when he tells us, that a lawful prince who hath
the prior obligation of allegiance, can not lose that interest
without his own consent, by his subjects resigning himself
to the subjection of another; so that the natural born subject
of one prince can not, by swearing allegiance to another
prince, put off, or discharge himself from that natural
allegiance; for this natural allegiance, says he, was
intrinsic, and primitive, and antecedent to the other, and
cannot be divested without the concurrent act of that
prince to whom it was first due. And the authorities which
he brings in support of this opinion clearly prove that he
fell into mistake from the very reason assigned by Mr.
Locke. For, in the next paragraph he tells us, that there
were very many that had been antiently ad fidem regis Angliae
et Franciae, especially before the loss of Normandy:
such were the comes marescallus that usually lived in England,
and M. de Feynes, manens in Francia, who were ad
fidem utriusque regis; but they ordered their homages and
fealties so, that they swore or professed allegiance, only to
one, viz. [that king in whose dominions they respectively
resided;] the homage they performed to the other, [in
whose dominions they held lands, but did not reside
therein,] being not purely liege homage, but rather feudal:
and therefore when war happened between the two
crowns, remaneat personaliter quilibet eorum cum eo, cui fecerat
ligeanteam; et faciat servitium debitum ei, cum quo non steterat
in persona, namely the service due from the feud, or fee
he held: but this did not always satisfy the prince, cum quo
non steterat in persona, but their possessions were usually
seized, and rarely, or not without difficulty restored, without
a capitulation to that purpose between the two crowns.
And all the cases which he there cites in support of his
opinion proceed upon the same ground; namely, the right
which each prince exercised to seize the lands and possessions
within his dominions, which belonged to the subjects
of the other with whom he was at war. Which clearly
proves that the right of confiscation thus mutually claimed
and exercised, did not proceed upon the ground that the
party whose lands were seized had broken his natural allegiance,
or that which he might be supposed to owe to
the prince in whose dominions he was born; but that feudal
obligation, only, which every inferior tenant owed to
his superior lord, (whether such a superior were a sovereign
prince, or merely a private person) of whom he held
his lands. Now this power which a prince might possess
over the lands and possessions of a man who never resided
within his dominions, can not be construed to give him any
right over the person of such a man; neither on the other
hand can that prince in whose territories he happens to be
born claim any right to detain him therein, merely because
he first saw the light there, as Mr. Locke has most clearly
shewn; the most that he can do is to prohibit him from
carrying his property with him; which if it be lands he can
not, and if it be goods, he may not (if the laws of the state
forbid) carry away without the consent of the government.

From the whole that we have seen, it appears, that the
right of emigration is a right strictly natural; and that the
restraints which may be imposed upon the exercise of it,
are merely creatures of the juris positivi, or municipal laws
of a state. And consequently that wherever the laws of any
country do not prohibit, they permit emigration, or, as I
rather chuse to call it, expatriation. Now I apprehend it is
altogether immaterial to us in America, whether the laws
of England, France or Spain, permit the subjects of those
countries, respectively, to expatriate themselves, inasmuch
as I have shewn, or at least endeavoured so to do, that the
municipal law of no other country upon earth hath any
force, or obligation over the citizens of the United States,
as such; or over the citizens of any one state in the union,
otherwise, or in any greater degree than the constitution
or laws of such particular state may have adopted the
same: and then it obtains a force and operation, so far,
and so far only, as the act of adoption extends, and not on
account of any intrinsic obligation which it might be supposed
to possess, or derive from any other source. And,
although Virginia has adopted the common law of England,
under certain restrictions, yet Virginia by a positive
act of her legislature, so long since as the year 1783, declared
it to be a natural right which all men have, to relinquish
that society in which birth or accident may have
thrown them, and seek subsistence and happiness elsewhere,
and accordingly pointed out the mode in which any
citizen might exercise it. The constitution of Vermont, and
the first constitution of Pennsylvania contain similar declarations.
Can it then be doubted that the citizens of those
states, respectively, possess the right of exercising this natural
privilege, whatever may be the laws of the other states
in the union? If a doubt exists upon what principle it is
founded? perhaps it will be answered, upon the power
granted to congress by the constitution to establish an uniform
rule of naturalization. I have given an answer to this,
in a preceding tract. Perhaps; upon the faith of our treaties
with France, England, and other European nations.
But those treaties only stipulate for the conduct of the citizens
of the United States, so long as they remain such;
not, for their conduct after they shall have abandoned that
character in the manner which the laws of the respective
states permit.

If a person violates the treaties, and remains a citizen, the
treaties stipulate that he shall be punished, or be abandoned
by the U. States, as a pirate, and robber. But, if before he attaches
himself to any other nation, he renounces his character
of an American citizen, I cannot see that he is any longer
amenable to the United States for his conduct; nor can they
be considered as any longer responsible for a conduct which
in ninety nine cases out of an hundred, they can by no possibility
control, or punish; the parties having forever bidden
adieu to their territory and jurisdiction.

. . . . .

Let us now compare the situation and rights of aliens in
England with those in America. An alien in England remained
the subject of that king or government under
which he was born; he migrated to England for the temporary
purposes of merchandise, and not of perpetual residence;
because, as he continued to be the subject of a foreign
power, he was always supposed to retain the animum
revertandi to his natural sovereign; and, consequently,
whenever a war broke out between his own nation and
that of Great Britain, he was (however attached to the
place of his residence, it's laws or government,) considered
as an enemy, unless he could obtain a special letter of license
from the crown to remain in England; he could not
be made a denizen, but by the special favour of the crown;
nor be naturalized, but by the like favour of the supreme
legislature, (whose power extends even to an alteration of
the constitution itself.) Both these acquisitions must be obtained
as a matter of the highest grace and favour, and
not of right. Yet, under all these circumstances, an alien,
whose nation is in amity with England, is clearly and indisputably
entitled to the full protection of the laws in every
matter that respects his personal liberty, his personal security,
and his personal property, as fully and completely
as if he had been naturalized by act of parliament, or had
acquired all the rights of an Englishman by his birth.

An alien in America, antecedent to the revolution, was
entitled to all the rights and privileges of an alien in England,
and many more; to all that an alien in England could
claim, because, as has been remarked elsewhere, the common
law of England and every statute of that country made
for the benefit of the subject, before our ancestors migrated
to this country, were, so far as the same were applicable to
the nature of their situation, and for their benefit, brought
over hither by them; and wherever they are not repealed,
altered, or amended by the constitutional provisions, or
legislative declaration, of the respective states, every beneficial
statute and rule of the common law still remains in
force. An alien in America was also entitled to many more
rights than an alien in England. 1st, By the very act of migrating
to, and settling in, America, he became ipso facto a
denizen, under the express stipulations of the colonial
charters, (all of which, it is believed, contained similar
clauses) whereby it was stipulated for the better encouragement
of all who would engage in the settlement of the
colonies, that they, and every of them that should thereafter
be inhabiting the same, should, and might, have all
the privileges of free denizens, or persons native of England.
2d, By the same act of migrating he had a right to
be naturalized under the sanction of a pre-existing law, made
not only for the benefit, but for the encouragement, of all in
a similar situation with himself. The operation of these
laws was immediate, not remote; he became a denizen, as of
right, instantly; he became naturalized upon payment of
the legal fees for his letters of naturalization, and taking
the usual oaths.

By the adoption of the constitution of the United States,
the rights of aliens to become citizens was by no means
intended to be taken away. . . . on the contrary, it is expressly
provided, that congress shall have power to establish
an uniform rule of naturalization, throughout the
United States. The dissimilarity in the rules of naturalization,
in the several states, was supposed to have laid the
foundation for intricate and delicate questions, under that
article of the confederation which declares, that the free
inhabitants of each state, paupers, vagabonds, and fugitives
from justice excepted, should be entitled to all privileges
and immunities of free citizens in the several states; under
which provision, it seems to have been apprehended, that
the free inhabitants of one state, although not citzens thereof,
might be entitled to all the privileges of citizens in every
other: to obviate this and similar inconveniencies, this
power of prescribing an uniform rule of naturalization was
vested in the federal government. And here we may observe,
that congress are authorised to prescribe the mode
by which aliens may be naturalized, but it never was intended
to authorise it to take away the right. For, among
the acts of misrule alleged against our rejected sovereign,
George the third, in the declaration of independence, it is
asserted, "that he had endeavoured to prevent the population
of these states; for that purpose obstructing the laws
for naturalization of foreigners, and refusing to pass others
to encourage their migration hither." Every alien coming
into the United States, in time of peace, therefore acquired
an inchoate right, under the constitution, to become
a citizen; and when he has, in compliance with the laws,
made the requisite declarations of his intention to become
a citizen, and to renounce for ever all allegiance and fidelity
to any foreign prince, or state, and particularly that
prince or state whereof he was last a citizen or subject, he
seems to have acquired a right, of which no subsequent
event can divest him, without violating the principles of
political justice, as well as of moral obligation. For the government,
in requiring this declaration of renunciation on
the part of the alien, previous to his admission to the
rights of citizenship, and that at a very considerable period
before his right can, by the rule prescribed, be consummated,
tacitly engages not to withdraw its protection from
him; and much more, not to betray him, by sending him
back to that sovereign, whose allegiance he had, in the
most solemn manner, disclaimed, and whose subject and
adherent he could no longer be considered to be, whatever
political relations the two nations may thereafter stand in,
with respect to each other. If this position be just with respect
to those who might, under different circumstances,
have been regarded as alien enemies, (as being antecedently
subjects of a power with which the United States may thereafter
be at war), how much more powerfully will the same
reasoning apply in favour of those who can, under no possible
view of the case, be considered in that light? And, in
fact, nothing could more effectually discourage emigration,
(no, not even a total incapacity ever to be naturalized,)
than such an interpretation of our constitution and laws,
as would lay a snare for every foreigner disposed to settle
in this country; from whence, upon any personal pique or
national quarrel, in which he had no part or share, he
might be banished, and sent back to that very sovereign
whom he must have offended by making the declarations
prescribed by our laws.

Aliens, in the United States, are at present of two kinds.
Aliens by birth; and aliens by election. . . . 1. Aliens by
birth, are all persons born out of the dominions of the
United States, since the fourth day of July, 1776, on which
day they declared themselves an independent and sovereign
nation, with some few exceptions, viz. 1. In favour of
infants, "wheresoever born, whose father, if living, or otherwise,
whose mother was a citizen at the time of the birth
of such infants; or who migrated hither, their father, if
living, or otherwise their mother becoming a citizen of the
commonwealth; or who migrated hither without father, or
mother," during the continuance of the act of May, 1779,
c. 55, declaring who should be deemed citizens, which was
repealed October, 1783, c. 16, of that session, so far as
relates to the two latter cases; but continued as to the first.
2. Such persons as have obtained a right to citizenship under
the existing laws of the state, whether infants, or otherwise.
Edi. 1794, c. 110. 3. Such persons as have been
naturalized under the act of 1 Cong. 2 Sess. c. 3. 4. Such
persons as have, or may acquire the rights of citizenship
pursuant to the act of 3 Cong. c. 85, and the children of
such persons duly naturalized dwelling within the United
States, and being under the age of twenty-one years, at the
time of such naturalization; and the children of citizens of
the United States, born out of the limits and jurisdiction
of the United States. But the same act declares that the
right of citizenship shall not descend to persons, whose fathers
have never been resident in the United States. . . .
All persons born before the fourth day of July, 1776, who
were not natural born subjects of the crown of Great-Britain;
nor were on that day residents within, or inhabitants
of the United States; nor have since that time become citizens
of the United States, or some one of them, are also
aliens by birth.

2. Aliens by election are all such natural born, or naturalized
subjects of the crown of Great-Britain, as were
born, or naturalized before the fourth day of July, 1776,
and have not since become actual citizens of the United
States; or, having been actual citizens, have at any time
thereafter during the revolutionary war, voluntarily joined
the armies of Great-Britain, and borne arms against the
United States, or any of them; or been owner or part
owner of any privateer or other vessel of war; or a member
of the refugee board of commissioners at New-York;
or have acted under their authority; or have been for any
other cause proscribed by any state in the union. See V. L.
1779, c. 14 and 55. Oct. 1779, c. 18. Oct. 1783, c. 16, 17.
Edi. 1785. 1786, c. 10. 1794, c. 110. L. U. S. 1 Cong. 2
Sess. c. 3. 3 Cong. c. 85.

This distinction between aliens by birth, and those by
election, is of importance. Aliens by birth are generally
subject to all the incapacities to which aliens are subject by
the rules of the common law. Aliens by election (although
during the revolutionary war they were subject to many
incapacities, and even penalties) are now upon a much
more eligible footing; possessing rights, (partly derived
from the rules of the common law, and partly from the
provisions contained in the treaty of peace in 1783, and
the treaty of London in 1794) to which aliens by birth can
have no claim, except as they may be derived (under the
treaty of 1794) by descent, devise, or purchase, from aliens
by election.

Aliens by election may then be shortly described to be
those subjects of the crown of Great-Britain on the fourth
day of July, 1776, who have elected to remain such, and
have not since become, and continued to be, citizens of the
United States, or some one of them. These, by the common
law, upon the separation of the two countries, were
still capable of inheriting and holding lands in the United
States, notwithstanding such separation; and on the other
hand, the citizens of the United States born before the
separation, had the like capacity to inherit, or hold lands
in the British dominions. 7 Co. Calvin's case. But it is conceived
that upon the death of these antenati, as they are
called, their lands in both countries, would have been liable
to escheat, if their heirs should be postnati, or born
after the separation. But that is provided against by the
treaty of London, 1794, Art. 9, whereby it is agreed, "that
British subjects, who THEN held lands in the territories of
the United States; and American citizens who then held
lands in the British dominions, shall continue to hold them
according to the nature and tenure of their respective estates,
and titles, therein: and might grant, sell or devise the
same to whom they please, in like manner as if they were
natives; and that neither they, their heirs or assigns, shall,
so far as may respect the said lands and the legal remedies
incident thereto, be regarded as aliens."

Tucker, St. George. Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. 5 vols. Philadelphia, 1803. Reprint. South Hackensack, N.J.: Rothman Reprints, 1969.